In re N.W.F. , 2019 Ohio 3956 ( 2019 )

[Cite as In re N.W.F., 2019-Ohio-3956.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
IN THE MATTER OF:
N.W.F.,
MINOR CHILD.
OPINION AND JUDGMENT ENTRY
Case No. 18 JE 0030
Civil Appeal from the
Court of Common Pleas, Juvenile Division, of Jefferson County, Ohio
Case No. 2010-PA-00184
BEFORE:
Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Reversed and Remanded.
Atty. Mary F. Corabi, 424 Market Street, Steubenville, Ohio 43952, for Appellee.
Atty. Kristopher Haught, and Atty. Bernard C. Battistel, Scarpone and Associates, 2021
Sunset Blvd., Steubenville, Ohio 43952, for Appellant.
Dated: September 30, 2019
WAITE, P.J.
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{¶1} Appellant-mother, P.L.L. appeals the November 27, 2018 Jefferson County
Common Pleas Juvenile Division judgment entry granting residential custody of the child
in this case to Appellee-father, W.G.F. In so doing, the court overruled the magistrate’s
decision in this matter, who had denied father’s motion for parental rights filed in response
to Appellant’s motion to modify parenting time. The trial court judge granted the motion
and awarded custody of the child to father. Based on the following, the record reveals no
change in circumstances and the judgment of the trial court is reversed and the matter is
remanded for further proceedings consistent with this Opinion.
Factual and Procedural History
{¶2} The parties in this matter were never married. The minor child had resided
with Appellant since birth. In 2014, Appellant did marry, and moved with her husband
and the child from Jefferson County, Ohio to Fort Drum, New York where stepfather was
stationed. At the time, Appellee expressed some concern about the move from Jefferson
County to New York, but never filed an objection with the juvenile court. On May 1, 2018,
Appellant again filed a notice of her intent to relocate with the child. This time, Appellee
filed a motion for reallocation of parental rights, seeking residential custody of the minor
child.
{¶3} A hearing on the matter commenced on August 21, 2018. According to
Appellant’s testimony at the hearing before the magistrate, Appellant and stepfather were
informed in early January or February of 2018 that stepfather was required to transfer
from Fort Drum to another U.S. Army military base. (8/21/18 Tr., p. 7.) According to the
record, transfer options included bases in Germany, Hawaii, Alaska and Texas. (8/21/18
Tr., p. 8.) It was eventually determined that he was to transfer to a base near El Paso,
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Texas. The transfer would not include a raise in pay for stepfather, but it would change
his rank from light infantry to a member of a mechanized unit, with an opportunity for
advancement. (8/21/18 Tr., p. 8.) During this hearing, the magistrate conducted an in
camera interview with the child. On August 28, 2018, the magistrate issued a lengthy
judgment entry, concluding: (1) the parties have always cooperated with visitation and
there had been no previous motions filed with the trial court over custody or parenting
time issues; (2) the minor child enjoys living with the child’s mother, stepfather and
stepsister and was looking forward to the move to Texas; (3) the child had a loving
relationship with Appellee; and (4) the evidence revealed that the move would not have
a “material effect” on the child. The magistrate correctly stated that relocation, alone, is
never enough to qualify as a change of circumstances, and determined that none of the
factors regarding change of circumstances had occurred. The magistrate concluded that
it was in the child’s best interest to remain in the custody of Appellant. The parties agreed
that Appellee would be granted extensive long distance visitation to attempt to replicate
the length of visitation he had been enjoying since 2014.
{¶4} On September 11, 2018, Appellee filed objections to the magistrate’s
decision. Appellee raised four specific objections to the decision. First, Appellee
contended that the magistrate erred in concluding the move to Texas would not have a
material effect on the child. Appellee cited testimony at the hearing that the child had
difficulty adjusting to school in New York. Appellee also raised his own testimony that he
had visited the child at least 93 days a year and that there were no other relatives in
Texas, as all of them were in Ohio. Appellee contended that travel time for visits would
increase from seven hours to a day and a half. Appellee also complained that the move
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to Texas was for purely personal reasons, as Appellant’s husband simply wanted to be
on the same base as a friend and would not benefit by an immediate raise in income.
{¶5} Appellee’s second objection was the trial court failed to consider that the
bond between the father and child will be threatened by the distance of the move and
passage of time.
{¶6} Appellee’s third objection argued the trial court failed to consider that the
move will negatively impact the child’s school performance because of the adjustment to
a new school and new friends.
{¶7} Appellee’s fourth objection was that the magistrate failed to determine that
based on all of the circumstances, this move amounted to a change in circumstances.
Appellee relied heavily on the fact that Ohio is not new to the child but that Texas would
be a new environment.
{¶8} On November 13, 2018, Appellee filed a motion seeking for the trial court
judge to have an in camera interview with the child. A hearing on the objections was held
on November 19, 2018 and the parties were present with counsel. No new testimony
was entered but counsel for both parties argued their positions to the trial court. At the
conclusion of the hearing, the judge conducted an in camera interview with the child.
{¶9} On November 27, 2018, the trial court issued a judgment entry. The trial
court recited the facts found by the magistrate but stated:
At paragraph 10 the Magistrate concluded that the move to “Texas will not
have a material effect on the minor child”. That simple conclusion was not
explained or analyzed by the Magistrate in any way. The fact of the matter
is that the move will affect the minor child in material ways.
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The first adverse effect is that which accompanies almost any move. It
caused problems with the move from Jefferson County to Syracuse, New
York necessitating counseling for the child. Another move can’t do him any
good. This however seems to be the kind of problem that Courts have
downplayed. In this case however there are more.
The child in this case visited with his father often and regularly even from
Syracuse. The child was with the father 101 days last year, 99 days the
year before and 93 days the year before that. That is not possible from
Texas. In all of that time spent with [the child’s] Father, [the child] was able
to associate with his extended family, all of whom live in Jefferson County.
The move costs [the child] not only access to [the child’s] Father but also
access to [the child’s] extended family none of whom live in the vicinity of El
Paso, Texas.
Syracuse, New York was a seven-hour drive that could be made on two
tanks of gas. Transportation to and from El Paso is about $1,000 each way
and involves an all-day ordeal when one considers door-to-door time. That
is, one must leave home and get to the airport generally two hours before
the flight. Then there is the flight and maybe a lay-over and another flight
and then there is the car trip to the final destination. For [the child], what
was a seven hour car ride with a parent becomes an all day ordeal much of
which is spent in the air or in airports * * * or with a stranger hired for the
purpose.
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[The child’s] visitation with [the child’s] Father is important in this case. Not
only does [the child] associate with [the child’s] Father and also [the child’s]
extended family with access to both sides even though the Mother’s family
rarely takes advantage of this access. More importantly the things [the
child] likes to do and the people that he likes to do them with are in Jefferson
County.
The Magistrate found that paragraph 9 “the child enjoys living with his
Mother, Stepfather and Stepsister and is looking forward to the move.”
While [the child] does have a good relationship with [the child’s] Mother and
Stepfather and Stepsister [the child] does not want to be in Texas. During
the interview [the child] was asked what [the child] likes to do and [the child]
named off a number of activities. The Court then asked [the child] who [the
child] does them with and for each activity [the child] stated * * * Father and
* * * “Stepmother”. The Court specifically asked [the child] what [the child]
did in Syracuse and [the child] stated that [the child] played in the snow,
rode [the child’s] bike and played with friends, none of which involved the
adults in [the child’s] life. The Court then asked [the child] what [the child]
enjoys about Texas and [the child] responded “riding my bike”. Again there
was no indication of activities that he does with [the] Mother or Stepfather
even though [the child] does love them both. Finally, [the child] stated that
[the child] wanted to stay with [the child’s] Father which was not surprising
given the balance of the interview.
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While the best interest of the parents is no part of the test the Court feels
compelled to discuss it. * * *
The transfer of [Appellant’s] husband was optional with him. He is moving
to a base to which his best friend just moved. His pay and rank will be the
same and Appellant’s pay will actually be less than she makes now. It has
been suggested that the move is partially motivated by the desire of
[Appellant’s] husband to learn mechanical maintenance. But every base
has vehicles and equipment that need to be maintained and it would seem
that the primary objective here is for [Appellant’s] husband to be with his
best friend. The next question becomes, “What’s in it for [the child]?”
[The child] gives up constant contact with [the child’s] very involved Father
and extended family and leaves the place where [the child] wants to be so
that [the child’s] Stepdad can be with his best friend. The cost is all on [the
child’s] side and [the child] receives none of the benefit.
In light of the foregoing the Court finds that there has been a change in
circumstances of the child and the child’s residential parent and that a
modification is in the best interest of the child. The Court further finds that
the harm likely to be caused by a change in environment, back to one with
which the child is familiar, is far outweighed by the advantages of that slight
change in as much as it avoids the change to another unfamiliar
environment and allows [the child] constant access to a parent and
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extended family and allows [the child] to be where [the child] wants to be
with the people who interact with [the child] the most. (Footnotes omitted.)
(11/27/18 J.E., pp. 3-5.)
{¶10} The trial court held that the move did amount to a change of circumstances
and that it was in the best interest of the child to grant Appellee-father residential parent
status, finding that the harm caused by this change would be “diminis” [sic] compared to
the advantages to the child.
{¶11} On December 27, 2018, Appellant filed a motion for a stay with the trial court
pending appeal. This motion stated that the minor child had resided with Appellant since
birth and had moved to Texas with Appellant in August of 2018 and was enrolled in school
in Texas. Moreover, Appellant argued that absent a stay of the trial court order, the child
would be forced to move to Ohio and enroll in yet another new school. Appellee filed a
response to the motion to stay on January 2, 2019, alleging that the child expressed the
desire to reside in Jefferson County and confusingly stated that the child was currently
“enrolled in the same school he began when he resided in Jefferson County for the first
four (4) years of his life.” (1/2/19 Response to Plaintiff’s Motion to Stay.) The statement
is confusing since it is apparent the child would not have been enrolled in an Ohio school
due to the age at the time. The trial court overruled the stay, without explanation, in a
judgment entry dated January 22, 2019. No stay was sought in this Court.
{¶12} On February 13, 2019, the trial court issued another judgment entry. While
acknowledging that the issue of custody was on appeal to this Court, the trial court
ordered that,
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Effective November 27, 2018, the [Appellee], is designated the residential
parent and legal custodian of the minor child[.]
Effective November 27, 2018, the child support obligation of the [Appellee]
is hereby terminated.
(2/13/19 J.E.) Although the trial court has continuing jurisdiction on matters of custody
and child support, the court was without jurisdiction to issue this judgment entry once a
notice of appeal was filed. Generally, a trial court loses jurisdiction to issue orders in a
matter once a direct appeal has been taken. State ex rel. Special Prosecutors v. Judges,
55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). Where a trial court issues an order without
having jurisdiction to do so, the court of appeals may properly vacate that order.
Cincinnati School Dist. Bd. of Ed. v. Hamilton Co. Bd. of Revision, 87 Ohio St.3d 363,
368, 721 N.E.2d 40 (2000). Appellant filed this timely appeal on December 27, 2018.
The trial court issued the judgment entry in question on February 13, 2019. Based on the
record, the trial court was without jurisdiction to render a judgment at that time. Therefore,
the trial court’s February 13, 2019 judgment entry is void for lack of jurisdiction.
{¶13} We also note that throughout the proceedings below the court repeatedly
refers to the minor child by name, both at hearings and in written judgment entries. It has
been a longstanding practice to protect the identity of minor children in most legal matters,
including all family law matters. A court must take the utmost care to protect the identity
of minor children at all levels of legal proceedings. References to minor children by name
at hearings and in written judgment entries should be avoided whenever possible.
ASSIGNMENT OF ERROR
Case No. 18 JE 0030
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THE JEFFERSON COUNTY COURT OF COMMON PLEAS ERRED IN
FINDING THAT A CHANGE IN CIRCUMSTANCES OCCURRED.
{¶14} In her assignment of error, Appellant contends the trial court erred in finding
a change in circumstances had occurred, warranting the decision to grant residential
parent status to Appellee.
{¶15} The standard of review for matters concerning child custody is whether the
trial court committed an abuse of discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 418-
419, 674 N.E.2d 1159 (1997). When a trial court’s determination in a custody matter is
supported by a substantial amount of competent and credible evidence, it will not be
reversed absent an abuse of discretion. In re Dissolution of Marriage of Early v. Early,
7th Dist. Columbiana No. 15 CO 0015, 2016-Ohio-8413, ¶ 17, citing Bechtol v. Bechtol,
49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus. An abuse of discretion connotes the
trial court’s judgment was unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶16} A trial court has discretion to issue an equitable judgment based upon the
facts and circumstances of each case. Booth v. Booth, 44 Ohio St.3d 142, 144, 541
N.E.2d 1028 (1989). However, while the discretion of the trial court is broad, it is not
absolute, and must be guided by the provisions of R.C. 3109.04. Miller v. Miller, 37 Ohio
St.3d 71, 74, 523 N.E.2d 846, 849 (1989).
{¶17} R.C. 3109.04(E) governs the modification of a prior decree in which parental
rights and responsibilities were allocated. It provides:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that
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have arisen since the prior decree or that were unknown to the court at the
time of the prior decree, that a change has occurred in the circumstances
of the child, the child's residential parent, or either of the parents subject to
a shared parenting decree, and that the modification is necessary to serve
the best interest of the child. In applying these standards, the court shall
retain the residential parent designated by the prior decree or the prior
shared parenting decree, unless a modification is in the best interest of the
child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent or
both parents under a shared parenting decree agree to a change in the
designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents
under a shared parenting decree, has been integrated into the family of the
person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed
by the advantages of the change of environment to the child.
R.C. 3109.04(E)(1)(a).
{¶18} Therefore, three elements must exist before a trial court may properly
modify an existing parenting decree: (1) there must be an initial finding that a change of
circumstances has occurred; (2) if such a change of circumstances exists, the
modification of custody must be in the child’s best interest; and (3) any harm to the child
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from a modification of custody must be outweighed by the advantages of the modification.
Rohrbaugh v. Rohrbaugh, 136 Ohio App.3d 599, 604, 737 N.E.2d 551 (7th Dist.2000).
The record in the case must support each of the three findings, or modification of custody
is contrary to law. Davis at 417. Moreover, the language of R.C. 3109.04(E)(1)(a) creates
a rebuttable presumption that retaining as residential parent the parent designated in the
prior decree is in the child’s best interest. The statute specifically states that a trial court
shall not modify a prior existing decree unless the three statutory provisions have been
met. See Rohrbaugh at 604.
{¶19} In the instant matter, the trial court specifically concluded that Appellant’s
relocation to Texas would “affect the minor child in material ways” and constituted a
change in circumstances sufficient to justify a modification of the prior parenting decree.
Therefore, we must determine whether the record supports this conclusion or whether the
trial court abused its discretion when it made this determination.
{¶20} Citing Vincenzo v. Vincenzo, 2 Ohio App.3d 307, 441 N.E.2d 1139 (11th
Dist.1982), Appellant argues that the trial court’s conclusion that a change of
circumstances occurred based solely on Appellant’s relocation to Texas is contrary to law
and the record does not support the trial court’s conclusion. Appellee acknowledges that
relocation, in itself, is not sufficient to constitute a change of circumstances but urges that
the record demonstrates Appellant’s relocation will have harmful effects on the minor
child.
{¶21} The issue of relocation of a parent in a custody matter is not new. We again
note that, first and foremost, a strong presumption exists in favor of retaining the existing
residential parent. Williamson v. Williamson, 7th Dist. Jefferson No. 16 JE 0022, 2017-
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Ohio-1082, 87 N.E.3d 676 ¶ 11. R.C. 3109.04(E)(1)(a) creates a rebuttable presumption
that it is in the child’s best interest to retain the residential parent designated in the prior
decree. In this matter the minor child has lived with Appellant his entire life. Appellee
enjoyed extensive visitation with the child, over 90 days of visitation a year beginning with
Appellant’s move to New York in 2014, to which no formal objections were filed. Appellee
had the burden of overcoming the statutory presumption in establishing that a change of
circumstances occurred warranting a change in residential parent. It is axiomatic that
relocation alone does not constitute a change of circumstance. As we have recently held,
“relocation, by itself, is not sufficient to be considered a change in circumstances, but it is
a factor in such a determination.” Williamson, ¶ 25. Our sister districts have consistently
also held that relocation alone will not be sufficient to overcome the presumption of
retaining a residential parent and does not constitute a change of circumstances. See
Jillian F. v. Curtis C., 5th Dist. Tuscarawas No. 2018 AP 04 0016, 2018-Ohio-5373 (other
factors beyond relocation such as parent’s emotionally abusive behavior toward the child
warranted a finding of a change of circumstances); In re L.B., 6th Dist. Sandusky No. S-
17-028, 2018-Ohio-1957, ¶ 35 (multiple relocations by a parent did not alone constitute a
change of circumstances to reallocate parental rights); Valentine v. Valentine, 12th Dist.
Butler No. CA2004-01-024, 2005-Ohio-2366, ¶ 45 (relocation is a change of
circumstances because it would virtually sever the minor child’s relationship with the
nonmoving parent); Trudell v. Trudell, 3rd Dist. Hancock No. 5-11-47, 2012-Ohio-5023,
¶ 20 (where the record contains evidence that both parents have a good relationship with
the child, relocation alone is not sufficient to overcome the presumption that the
residential parent should remain intact); In re S.M.T., 8th Dist. Cuyahoga No. 97181 2012-
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Ohio-1745, ¶ 23 (relocation is not a change of circumstances where a parent is a member
of the military and relocation is always a possibility.)
{¶22} The Eleventh District has noted on the issue of relocation, “since a child is
almost always going to be harmed to some extent by being moved, the non-custodial
parent should not be able to satisfy his or her burden simply by showing that some harm
will result; the amount of harm must transcend the normal and expected problems of
adjustment.” (Emphasis deleted.) Schiavone v. Antonelli, 11th Dist. Trumbull No. 92-T-
4795, 1993 WL 548034, *4 (Dec. 10, 1993).
{¶23} Appellant was the residential parent of this child since birth. The prior
decree, dated January 5, 2015, granted Appellant residential parent status and granted
long distance visitation to Appellee. At the time, Appellant had relocated to New York
due to her husband’s duties as a member of the U.S. Army. Appellee never filed any
motion with the trial court objecting to Appellant’s move to New York nor did he seek
reallocation of parental rights because of the move to New York. Appellee did not contest
the child’s move from Jefferson County, Ohio to New York in any way.
{¶24} In addressing Appellee’s objections to the magistrate’s decision, the trial
court restated the magistrate’s decision, including certain facts and relevant caselaw.
However, the trial court took issue with the magistrate’s determination that the relocation
would not have a material effect on the minor child. The trial court concluded that
assertion was not supported by the record and determined the record supported the
opposite conclusion. The trial court proceeded to list the adverse effects on the relocation
of the minor child to Texas. The first adverse effect was “that which accompanies almost
any move,” noting that the move from Jefferson County to New York when the child was
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four years old required counseling for the child. This conclusion is not supported by the
record. The testimony at the hearing was not that the relocation to New York was a
problem for the child. The testimony at hearing indicated that only when the child began
to go to school did he begin to have difficulties. Contrary to Appellee’s statement, the
child was not old enough to attend school while he resided in Jefferson County. This
record reveals that it was the beginning of a school career, and not the relocation to New
York, which caused difficulty for the child. Again, the trial court did acknowledge that any
move will require an adjustment to new surroundings.
{¶25} The second adverse effect cited by the trial court was the distance of the
move and the affect that would have on visitation with Appellee and the child’s extended
family. The child had spent several days with Appellee in each of the three successive
years: 101 days the year prior; 99 days the year before that and 93 days the year prior
to that. The trial court noted that extended family on both sides live in Jefferson County
and none live in Texas. The record shows, however, that while the distance of the move
was greater, the recommended parenting time schedule proposed by the magistrate was
quite generous. The magistrate acknowledged the amount of visitation Appellee had
regularly been exercising with the child while the child was in New York. Hence, the
proposed parenting time order included extended weekend visitations for four months out
of the year; every Thanksgiving school holiday and alternating Christmas holidays;
extended spring break visitation every year; eight weeks of summer visitation every year;
any visitation in Texas of Appellee’s choosing with a two-week notice; and the
requirement that any time Appellant was in Ohio where her extended family resides, she
was to notify Appellee and provide for visitation. This structure would provide Appellee
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with nearly the same amount of visitation he had been enjoying for the previous four years
without incident. The summer visitation alone would constitute approximately 57 days
with every spring break, Thanksgiving, extended weekends for a quarter of the year filling
in the rest. Moreover, just as the minor child had done when living in New York, any
visitation with Appellee would provide the opportunity to visit extended family.
{¶26} In part, the trial court was concerned that the distance of the move
contributed to a great difference in travel time to Texas, versus Appellee’s regular travel
to New York. While it is true that the distance to Texas from Ohio is greater than to New
York, both are within the continental United States. While the trial court was correct that
father would undoubtedly be inconvenienced by the move to Texas, we again are
cognizant that long distance travel is part and parcel of any relocation. The caselaw on
this issue is clear. The amount of harm must transcend the “normal and expected”
problems of relocation. See In re C.R.W., 7th Dist. Jefferson No. 19 JE 0002, 2019-Ohio-
2642, wherein this Court concluded that the mother’s relocation to Japan, on another
continent and with many cultural differences, constituted a sufficient change in
circumstances. The record also shows that of all the possible bases to which stepfather
may have transferred, Texas was the closest in distance.
{¶27} The trial court also asserts that during the in camera interview the minor
child mentioned preferred activities that all occurred at Appellee’s residence with
Appellee, whereas the activities discussed at Appellant’s home were all solitary activities.
Not only does this conclusion by the trial court inject a separate issue of fitness of
parenting or level of involvement of a parent into the determination, which is outside of
the statute and involves different levels of evidence, it is also not supported by the record.
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In the earlier interview with the minor child by the magistrate the child expressed
excitement at the prospect of living with Appellant in Texas and that the child would have
the ability to engage in many outdoor activities because of the absence of a cold winter
season. The child also told the magistrate that one of the activities enjoyed was watching
and engaging in football with stepfather. During the trial court’s in camera interview the
minor child was asked a number of questions and expressed a natural desire to live close
to both parents, and to spend time not only with the child’s sister but also with extended
family who live in Ohio. None of the statements made by the child in either the
magistrate’s or the court’s interview were outside the normal experience of a child where
the parents live separately, or of any child relocating to a new environment. The
characterization by the trial court that the activities engaged in by the child at Appellee’s
home were more family oriented are not supported by the record and would not be
relevant to the issue in this matter, which is to determine whether this relocation
transcends the ordinary move and would constitute a change in circumstances.
{¶28} Finally, the trial court discusses “the best interest of the parents,” which the
court acknowledges should not be considered as part of the statutory analysis but is
clearly central to the court’s determination. The trial court relies heavily on the belief that
Appellant’s husband chose to move to the new base to be with a friend, and not for any
more important reason, such as better pay. While the court recognizes that Appellant
and stepfather explained that the move to Texas was for stepfather to advance in
mechanical maintenance, the trial court minimizes this explanation, stating “every base
has vehicles and equipment.” The judge apparently believes this was a purely pretextual
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reason and the desire for stepfather to live near his friend is the true reason. During the
hearing on the objections to the magistrate’s decision the trial court stated:
Well, and understand this, and Courts of Appeals gets confused on this too,
the test here is the best interest of the child, not the best interest of some
step-dad, not the best interest of mom, not the best interest of dad.
***
I mean, I don’t -- I don’t -- I don’t see some big benefit to going to Texas.
Now, I’ll look in the testimony and maybe there’s testimony of some big
benefit. As I sit here I don’t see the benefit but I’m going to read all the
testimony and find out.
(11/19/18 Tr., pp. 23-24.)
{¶29} Regardless of which reason is Appellant’s true reason for choosing Texas,
this record shows that stepfather was required to relocate from New York, and Ohio was
not an option. Hence, the reasons for choosing one base over another have no bearing
on this case. Again, the issue before the court was whether the proposed relocation in
this matter rises to the level of a change in circumstances and whether modification of
parental rights was warranted pursuant to R.C. 3109.04.
{¶30} The record before us is completely devoid of any indication that there have
been any parenting issues between the parties at any time, including the four years that
Appellant resided in New York with the child. There have been no allegations of
alienation, interference with visitation, or any parenting issues regarding this child. The
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sole variable which has occurred between the parties is the proposed relocation of the
child to another base because stepfather is a member of the military. Stepfather’s status
as a member of the military was known to all parties at the time of the initial determination
on custody and no issues were raised in the move to New York. There is no medical
testimony or evidence of psychological distress, physical coping issues, or other more
serious concerns in this matter warranting a deviation from the rebuttable presumption
that Appellant is to maintain residential parent status. There is no evidence that the move
is for the purpose of limiting Appellee’s ability to spend time with the child. To the contrary,
Appellant agreed to substantial visitation time between the child and Appellee, which
would correspond with approximately the same amount of parenting time Appellee has
been enjoying. There have been no contempt motions filed between the parties in the
intervening years or any evidence presented that there has ever been interference with
visitation by Appellant. Appellee never objected to Appellant relocating with the child to
New York and no motions were filed in Jefferson County for the several years the child
resided in New York.
{¶31} While the distance of the proposed move will unquestionably inconvenience
father and make visitation more cumbersome and expensive, relocation by itself, with
nothing more, does not constitute a change of circumstances. The trial court’s analysis
and concern that this child’s relationship with father may suffer is commendable, but the
record reveals that his concern that great harm would occur appears entirely speculative.
Not one relevant fact exists in this record to show that this relocation is so greatly outside
of the norm in the harm it poses to the child that it rises to a change in circumstances. In
our review we are mindful that the harm that must be shown in order to overcome the
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presumption that the child’s custody should remain with mother is harm to the child. We
are not to consider harm to mother, father, or extended family. The record in the matter
demonstrates that both parties love this child, have utilized parenting time appropriately,
and have incorporated the child into their respective families. Clearly, father does not
want to be more inconvenienced in exercising visitation and has been an active parent in
this child’s life. However, despite the trial court’s characterization, the record does not
support a deviation from the rebuttable presumption that Appellant maintain custody of
the child as she has from birth. This record does not reveal that any change of
circumstances has occurred. The trial court erred in concluding that, based on
Appellant’s relocation to Texas, a change of circumstances occurred in this matter
sufficient to order a change of parental rights.
{¶32} For the above reasons, Appellant’s assignment of error has merit and is
sustained. The judgment of the trial court is reversed and the matter remanded for the
trial court to conduct any further necessary orders consistent with this Opinion.
Donofrio, J., concurs.
D’Apolito, J., concurs.
Case No. 18 JE 0030
[Cite as In re N.W.F., 2019-Ohio-3956.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is sustained and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Jefferson County, Ohio, is reversed. We hereby remand
this matter to the trial court for further proceedings according to law and consistent with
this Court’s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.